McMillan v. Boy Scouts of America-Aloha Counsel No. 104

Filing 50

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS COUNTERMOTION FOR SUMMARY JUDGMENT 29 ; 39 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/15/12. -- "The court GRANTS Aloha Council's summa ry judgment motion, and DENIES McMillan's summary judgment motion. McMillan's Hawaii law claim remains for future adjudication." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive e lectronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THOMAS McMILLAN,

)
)
Plaintiff,
)
)
vs.
)
)
BOY SCOUTS OF AMERICA-ALOHA
)
COUNCIL,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 11-00430 SOM-BMK
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT,
AND DENYING PLAINTIFF’S
COUNTERMOTION FOR SUMMARY
JUDGMENT

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND DENYING PLAINTIFF’S COUNTERMOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Plaintiff Thomas McMillan claims he was denied overtime

pay by his employer, Defendant Boy Scouts of America-Aloha
Council (“Aloha Council”), in violation of the Fair Labor
Standard Act (“FLSA”), 29 U.S.C. § 201 et seq., and, in the
alternative, Hawaii wage and hour law, section 387-3 of Hawaii
Revised Statutes.

McMillan, whose primary duties included

maintaining Aloha Council’s campgrounds, argues that Aloha
Council improperly considered him exempt from the FLSA’s
requirement that employees who work more than 40 hours per week
be paid overtime wages.

Both parties now seek summary judgment

with respect to the FLSA claim.

The court grants Aloha Council’s

motion and denies McMillan’s motion.

II.

FACTUAL BACKGROUND.
Aloha Council administers camping programs for the Boy

Scouts of America in Hawaii.

Def.’s Concise Statement of Facts

in Supp. of Mot. for Summ. J. ¶¶ 1, 5, ECF No. 30 (“Def.’s
Facts”).

It runs three campgrounds in Hawaii: Camp Pupukea (on

Oahu), Camp Alan Faye (on Kauai), and Camp Honokaia (on the
island of Hawaii).

Id. ¶ 5.

Each campground offers, among other

things, lodging, campsites, a dining area, trails, and various
recreational services.

Id. ¶ 6.

According to Aloha Council,

each campground operates almost entirely as a summer camp.
¶ 7.

Id.

McMillan contends that substantial activity occurs at Camp

Pupukea throughout the year.

Pl.’s Concise Statement of Facts in

Opp. to Def.’s Concise Statement of Facts (“Pl.’s Facts in Opp.”)
No. 7, ECF No. 38.
McMillan was employed by Aloha Council from March 1,
2007, until May 31, 2011.

Id. ¶ 8.

From March 1, 2007, until

December 31, 2010, his job title was “Council Properties
Superintendent/Camp Ranger.”

Id.

From January 1, 2011, until

May 31, 2011, his position was “Outdoor Programs and Properties
Support Team Leader.”

Id.

Aloha Council deemed both positions

exempt from the requirement in the FLSA and Hawaii’s wage and
hour law that an employee be paid overtime wages.

Id. ¶ 9.

As an employee of Aloha Council, McMillan spent 85
percent of his time serving as Camp Ranger for Camp Pupukea.

2

His

duties as Camp Ranger included various maintenance work such as
servicing the swimming pool, lodging areas, and the campsite’s
vehicles; performing yardwork; inspecting safety equipment;
checking in guests; and scheduling service projects.

See Def.’s

Facts ¶ 10; Decl. of Kevin P. McLaughlin Ex. E, ECF No. 30-1.
McMillan spent 8 percent of his time establishing maintenance
schedules and improvement plans and maintaining and repairing
Aloha Council’s other campsites.

Id.

He spent 5 percent of his

time serving on committees, such as the “Property and Risk
Management Committee,” and developing maintenance budgets for
each campground.

Id.

The remaining 2 percent of his time was

spent on “negligible” duties, according to McMillan’s response to
Aloha Council’s discovery requests.

Def.’s Facts ¶ 10;

McLaughlin Decl. Ex. D.
More specifically, McMillan submits documents showing
that he worked a total of 1540 days at Aloha Council.
Facts ¶¶ 11-13; McLaughlin Decl. Ex. E.

Def.’s

On 1536 days, McMillan

spent at least part of the day working on tasks related to one or
more of Aloha Council’s campgrounds.

Id.

On 172 days, he spent

part of the day working on tasks indirectly related to the camps,
such as attending meetings, creating agendas, and planning
programs.

Id.

On 46 days, he spent part of the day on

maintenance tasks for Aloha Council’s headquarters, called the
“Service Center.”

Id.

3

McMillan now seeks overtime pay for the hours he worked
in excess of 40 hours per week.
III.

SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “the movant

shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).

Fed.

A moving party has both the initial burden of

production and the ultimate burden of persuasion on a motion for
summary judgment.

Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court “the portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.
Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

“A fact is

material if it could affect the outcome of the suit under the
governing substantive law.”

Miller, 454 F.3d at 987.

When the

moving party bears the burden of proof at trial, that party must
satisfy its burden with respect to the motion for summary
judgment by coming forward with affirmative evidence that would
entitle it to a directed verdict if the evidence were
uncontroverted at trial.

Id. (quoting C.A.R. Transp. Brokerage

4

Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir.
2000)).

When the nonmoving party bears the burden of proof on

one or more issues at trial, the party moving for summary
judgment may satisfy its burden with respect to those issues by
pointing out to the court an absence of evidence from the
nonmoving party.

Miller, 454 F.3d at 987.

When the moving party meets its initial burden on a
summary judgment motion, “[t]he burden then shifts to the
nonmoving party to establish, beyond the pleadings, that there is
a genuine issue for trial.”

Id.

The court must not weigh the

evidence or determine the truth of the matter but only determine
whether there is a genuine issue for trial.

See Balint v. Carson

City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).

On a summary

judgment motion, “the nonmoving party’s evidence is to be
believed, and all justifiable inferences are to be drawn in that
party’s favor.”

Miller, 454 F.3d at 988 (brackets omitted)

(quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
Summary judgment may also be appropriate when a mixed
question of fact and law involves undisputed underlying facts.
See EEOC v. UPS, 424 F.3d 1060, 1068 (9th Cir. 2005); Colacurcio
v. City of Kent, 163 F.3d 545, 549 (9th Cir. 1998).
IV.

ANALYSIS.
Under the FLSA, employers generally must pay their

employees at least one and one-half times their regular rate of

5

pay for hours worked in excess of 40 hours in a week.
U.S.C. § 207(a)(1).

See 29

Certain employees are exempt from that

overtime requirement.

See 29 U.S.C. §§ 213(a).

“Employers have

the burden of demonstrating that a particular employee, or
category of employees, is not within the ambit of the overtime
provision.”

Gieg v. DDR, Inc., 407 F.3d 1038, 1046 (9th Cir.

2005) (citing Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th
Cir. 1983) (per curiam)).

The exemptions to the FLSA are to be

“narrowly construed, giving due regard to the plain meaning of
statutory language and the intent of Congress.” Id. (quoting
Donovan, 703 F.2d at 1151).
Aloha Council argues that all of McMillan’s work is
exempted from the overtime provisions in the FLSA.

First, it

argues that his work is covered by § 213(a)(3), which exempts
employees employed by seasonal organized camps.

It argues that

the maintenance work done by McMillan at the campgrounds clearly
falls within the exception, as it was directly related to the
campgrounds’ operation.

Aloha Council argues that the remaining

work performed by McMillan, while not directly benefitting the
campgrounds, is permitted under 29 C.F.R. § 779.311 because it
was insignificant and incidental.
In the alternative, Aloha Council argues that McMillan
was exempt from the overtime requirement based on a combination
of two exemptions.

It argues that the maintenance work done by

6

McMillan at the campgrounds is covered by § 213(a)(3), and that
his remaining work falls under § 213(1)(a), which exempts
employees employed in an administrative capacity.
A.

Campground Work.

Under 29 U.S.C. § 213(a)(3), an employer need not pay
overtime wages for “any employee employed by an establishment
which is an . . . organized camp . . . if (A) it does not operate
for more than seven months in any calendar year, or (B) during
the preceding calendar year, its average receipts for any six
months of such year were not more than 33 a per centum of its
average receipts for the other six months of such year.”
McMillan does not dispute that Aloha Council’s camps
are “organized camps” within the meaning of § 213(a)(3), or that
each of Aloha Council’s camps is a separate establishment.

The

federal regulations interpreting the FLSA define an establishment
as a “distinct physical place of business.”1

1

29 C.F.R. § 779.23.

Although 29 C.F.R. § 779.23 appears in Part 779, which
expressly relates to retailers of goods and services, other
courts and the Department of Labor have applied various sections
within Part 779 to other exemptions stated in § 213(a). See,
e.g., Alvarez Perez, 515 F.3d at 1157-58 (11th Cir. 2008) (“We
stated that § 779.305 applies not only to the retail and service
establishment exemption, but also to a number of exemptions
listed in 29 C.F.R. § 779.302, including the hotel establishment
exemption.” (citing Marshall v. Sundial Assoc., Ltd., 588 F.2d
120, 123 n.2 (5th Cir. 1979) (explaining that § 779.305 is to be
applied to a number of exemptions including § 213(b)(8)))); Chao
v. Double JJ Resort Ranch, 375 F.3d 393, 398-99 (6th Cir. 2004)
(instructing the district court to apply 29 C.F.R. § 779.305 on
remand to determine whether an employer qualified for an
exemption under § 213(a)(3)); Dep’t of Labor, Opinion Letter No.
7

Each of Aloha Council’s campgrounds is a physically distinct
physical place of business.

In an opinion letter, the Department

of Labor stated that 45 base camps owned by the same organization
were likely separate establishments because they were physically
remote from one another.

Dep’t of Labor, Opinion Letter No.

FLSA2006-37, 2006 WL 3227792, at *1 (Sept. 28, 2006) (“Sept. 28,
2006, Opinion Letter”).

This court accords the Department of

Labor’s opinion letters deference.

See Solis v. Washington, 656

F.3d 1079, 1085 (9th Cir. 2011) (relying on two Department of
Labor opinion letters, and stating: “The DOL's interpretation of
its own regulations generally is accorded controlling deference
‘unless plainly erroneous or inconsistent with the regulation.’”
(quoting Auer v. Robbins, 519 U.S. 452, 461 (1997))).
Although it is not clear if any of the campgrounds
operates for only seven months per year, Aloha Council submits
accounting reports showing that its campgrounds meet
§ 213(a)(3)’s alternative requirement that its average receipts
for any six months amount to no more than 33 a percent of its
average receipts for the other six months of the year.

Def.s’

Facts ¶ 7; Decl. of Rick Burr Exs. B-D, ECF Nos. 30-13, 30-14,
30-15.

The Sixth Circuit says that “receipts” as used in

§ 213(a)(3) refers to when cash is received, not when money is

FLSA2006-37, 2006 WL 3227792, at *1 (Sept. 28, 2006). This court
relies on sections within Part 779 throughout this order.
8

recorded as income.

Bridewell v. Cincinnati Reds, 155 F.3d 828,

830-32 (6th Cir. 1998).

The Sixth Circuit thus held that an

establishment was not exempt when it met the receipts requirement
based on an accrual method of accounting--which records money as
income only when the underlying obligation (such as delivery of
the product or performance of the service) has taken place--but
did not meet the requirement based on a cash method, which
records money as income when it is received.

Id.

The Ninth

Circuit has not addressed this issue.
Aloha Council’s accounting reports appear to reflect
the cash method of accounting, and the Chief Executive Officer of
the Boy Scouts of America states in his declaration that Aloha
Council’s average “receipts” meet § 213(a)(3)’s receipts
requirement.

McMillan says that he needs further discovery to

determine whether the receipts were obtained on a cash or accrual
basis.

However, as discussed below, he fails to make a proper

request under Rule 56(d) of the Federal Rules of Procedure.

The

court relies on the record before it in ruling that Aloha
Council’s camps are establishments subject to the exemption
stated in § 213(a)(3).
At the hearing on the present motions, McMillan took
the position that Camp Pupukea is actually two separate
establishments: a four-week summer program, and the rest of Camp
Pupukea’s operations.

McMillan argued that he was employed by

9

Camp Pupukea’s other operations, which cannot meet the receipts
requirement in § 213(a)(3) and do not operate for only seven
months in a year.

McMillan raised this argument for the first

time at the hearing.
The federal regulations explain that separate
establishments may exist on the same premises.
§ 779.305.

29 C.F.R.

For this court to consider Camp Pupukea’s four-week

program a separate establishment, the program must be “physically
separated from the other activities,” and be “functionally
operated as a separate unit having separate records, and separate
bookkeeping.”

See id.

Also, there must not be any “interchange

of employees” between the four-week program and Camp Pupukea’s
other activities, although an employee of one establishment may
occasionally render some help in the other establishment.

See

id.
The First and Eleventh Circuits have held that physical
separation is less important when two business operations are
conducted at different times or during different seasons.
Alvarez Perez, 515 F.3d at 1158; Marshall v. N.H. Jockey Club,
Inc., 562 F.2d 1321, 1331 n.3 (1st Cir. 1977).

Regardless of

whether Camp Pupukea does or does not run afoul of the physical
separation requirement, there is no indication that Aloha Council
operates the four-week program as a unit separate from any other
activities at Camp Pupukea, or that the four-week program does

10

not interchange employees with the rest of Camp Pupukea’s
operations.
Aloha Council demonstrates that its camps are separate
establishments, meeting its initial burden on a summary judgment
motion.

McMillan fails to meet his burden of coming forward with

evidence showing that Camp Pupukea should actually be considered
two establishments.

To the extent McMillan seeks additional

discovery on that issue, as discussed below, he fails to properly
make such a request under Rule 56(d) of the Federal Rules of
Civil Procedure.

The court declines to consider Camp Pupukea’s

four-week program a separate establishment under § 213(a)(3).
Turning next to whether McMillan’s work at the
campgrounds is covered by the exemption, the court disagrees with
McMillan that the nature of his work puts him outside the scope
of § 213(a)(3).

McMillan appears to argue that, because he

worked year-round and performed a wide array of activities to
maintain the campgrounds, his work is not the type of work
contemplated by the exception.

He draws a parallel between

himself and someone hired to work solely for the four-week
program, who, McMillan concedes, would be exempt from overtime
pay.
Rather than focusing on the nature of the work, the
applicable federal regulations state that the exemption
“depend[s] on the character of the establishment.”

11

29 C.F.R.

§ 779.302.

“[I]f the establishment meets the tests enumerated in

these sections, employees ‘employed by’ that establishment are
generally exempt” from the FLSA’s overtime provision.

Id.

See

also Hamilton v. Tulsa Cnty. Public Facilities Auth., 85 F.3d
494, 497 (10th Cir. 1996) (“It is the character of the revenue
producing activity which affords the employer the protection of
the exemption.” (citing 29 C.F.R. § 779.302; Hays v. City of
Pauls Valley, 74 F.3d 1002, 1006 (10th Cir. 1996); Jeffery v.
Sarasota White Sox, Inc., 64 F.3d 590, 596 (11th Cir. 1995);
Marshall, 562 F.2d at 1331 n.4; Brennan v. S. Prod., Inc., 513
F.2d 740, 746-47 (6th Cir. 1975))); Sept. 28, 2006, Opinion
Letter, 2006 WL 3227792, at *1 (“If a base camp qualifies for the
section 13(a)(3) exemption, then all the employees of that base
camp are exempt from the FLSA overtime requirements.”).
The federal regulations also state, “In order to meet
the requirement of actual employment ‘by’ the establishment, an
employee, whether performing his duties inside or outside the
establishment, must be employed by his employer in the work of
the exempt establishment itself in activities within the scope of
its exempt business.”

29 C.F.R. § 779.308.

Thus, if McMillan’s

work falls within the scope of the campgrounds’ businesses,
McMillan is subject to the § 213(a)(3) exemption.
In Gieg, 407 F.3d at 1049-50, the Ninth Circuit
considered section 779.308 in determining whether employees were

12

employed in activities within the scope of a car dealership’s
exempt retail business.

The employees in issue were finance and

insurance managers of retail automobile dealerships.

Id.

The

Ninth Circuit disagreed with the district court’s conclusion
that, because the employees in issue were not engaged in retail
activity, the managers did not fall within the exemption that
pertained to retail establishments, 29 U.S.C. § 207(i).

Id.

Analyzing the cases cited in section 779.308, in which
courts had found that employees were not employed in the work of
the exempt establishment, the Ninth Circuit explained that those
cases “involved an employer engaged in a business endeavor that
was truly separate from, and not at all related to, the exempt
business of the establishment.”

Id. at 1050.

The Ninth Circuit

explained that the employees in issue in those cases worked for
distinct departments that were “wholly ‘extraneous’ to the work
targeted by the relevant exemption.”

Id. at 1051.

By contrast,

in Gieg, “the duties performed by the finance officers were an
integral, and integrated, part of their employer's auto
dealership operations as a whole.”

Id. at 1052 (quoting a

Department of Labor amicus brief).
McMillan spent 85 percent of his time serving as Camp
Ranger at Camp Pupukea and 8 percent of his time making
maintenance schedules and action plans for the other campgrounds.
Moreover, he does not dispute that he spent at least part of 1536

13

days working for one or more of Aloha Council’s campgrounds.

See

Pl.’s Memo. in Opp. to Def.’s Mot. for Summary J. at 17, May 2,
2012, ECF No. 37.

McMillan’s duties, which generally called for

maintaining the campgrounds and their facilities, constituted an
integral part of operating campsites.

Those duties therefore

qualify as activities within the scope of the campgrounds’
business.

See Dep’t of Labor, Opinion Letter, 2000 WL 35432058,

at *2 (May 23, 2000) (“May 23, 2000, Opinion Letter”)
(“Maintenance employees who engage in maintenance and repair work
which is a routine, normal incident to the operation of the
exempt summer camp would come within the exemption for the entire
year.”).

That McMillan worked year-round does not preclude this

court from considering his work within the scope of the
campgrounds’ business.

See Jeffery, 64 F.3d at 596 (“The focus

on the [§ 213(a)(3)] exemption is not on the length of time
Plaintiff performed his work.

Rather, the focus is on length of

the Defendant's seasonal operation.”).
The court is unpersuaded by McMillan’s reliance on
Brennan v. Six Flags Over Georgia, Ltd., 474 F.2d 18 (5th Cir.
1973), and Donovan v. S & L Development Co., 647 F.2d 14, 17 (9th
Cir. 1981).

In particular, McMillan relies on the Fifth

Circuit’s statement in Brennan that “[i]t is the character of the
work, not the source of the remuneration, that controls” in

14

arguing that his maintenance work is not subject to the exemption
under § 213(a)(3).
In Brennan, the Fifth Circuit held that construction
work by maintenance employees at a recreational establishment was
subject to the overtime provision in the FLSA because, if a
general contractor had been hired to do that work, the contractor
would not have been operating a recreational establishment.
at 19.

Id.

Construction work, however, is distinguishable from

maintenance work.

The Department of Labor has stated that

employees of an exempt establishment who engage in construction
do not qualify for the § 213(a)(3) exemption.

See May 23, 2000,

Opinion Letter, 2000 WL 35432058, at *2 (“Employees of a section
13(a)(3) exempt establishment who engage in construction or
reconstruction work do not qualify for the section 13(a)(3)
exemption in any workweek in which they are so engaged.”).
Neither the Department of Labor nor Brennan states that an
employee’s maintenance work falls outside the § 213(a)(3)
exemption.

Rather, in the May 23, 2000, opinion letter cited

earlier in this order, the Department of Labor stated that
employees who performed maintenance work would qualify for the
exemption.

See May 23, 2000, Opinion Letter, at *2 (“Maintenance

employees who engage in maintenance and repair work which is a
routine, normal incident to the operation of the exempt summer
camp would come within the exemption for the entire year.”).

15

McMillan points to no evidence demonstrating that he performed
construction.

Nor does he cite any authority equating

construction with maintenance.

Moreover, unlike Gieg, Brennan is

not binding on this court, and the Tenth Circuit has expressly
rejected Brennan’s statement that the nature of the work controls
application of the exemption.

Hamilton, 85 F.3d at 497 n.3.

Donovan, 647 F.2d at 17, cites Brennan and quotes as a
parenthetical the statement that McMillan relies on.2
fails to show how Donovan is instructive here.

McMillan

It addressed

whether the FLSA applied at all, not whether a particular
exception applied.

2

Donovan, 647 F.2d at 17, states:
In our view, Congress intended to cover
full-time construction workers for short-term
projects whether they are employed by
contractors or by other enterprises which
engage in construction work. The
construction workers employed by S & L did
the same kind of work that they would have
done had they been employed by an independent
contractor. We find “no valid reason to
discriminate between the two types of
employees.” Wirtz v. Allen Green &
Associates, Inc., 379 F.2d 198, 199 (6th Cir.
1967) (finding of coverage based on the fact
that the construction employees performed
“the same kind of work”). See also Brennan v.
Six Flags Over Georgia, Ltd., 474 F.2d 18, 19
(5th Cir.), cert. denied, 414 U.S. 827, 94
S.Ct. 47, 38 L.Ed.2d 61 (1973) (“It is the
character of the work, not the source of the
remuneration, that controls.”).
16

Nor does McMillan establish that he was employed by the
Service Center, rather than by the campgrounds, for purposes of
§ 213(a)(3).

McMillan argues that, because he had

responsibilities at Aloha Council’s various locations, including
its main office, he was employed by the Service Center.

However,

an employee may work at more than one exempt establishment within
the same organization.

See 29 C.F.R § 779.303.

As discussed

above, each of Aloha Council’s campgrounds is a separate
establishment.

The court recognizes that an employee who

performs work for a central organization with multiple
establishments is not subject to the exemption, even if the
employee actually performs the work at one or more
establishments.

See 29 C.F.R. § 779.309 (citing Mitchell v.

Kroger Co., 248 F.2d 935 (8th Cir. 1957)).

But McMillan’s

maintenance-type work for the campgrounds, which indisputably
amounts to 93 percent of his employment, was not in furtherance
of Aloha Council’s central or organizational functions.

Although

McMillan points to his job description in support of his position
that he actually worked for the Service Center, his job
description cannot trump his actual job duties.
The Tenth Circuit case of Brennan v. Yellowstone Park
Lines, Inc., 478 F.2d 285, 290 (10th Cir. 1973), does not rescue
McMillan’s arguments.

In that case, the Tenth Circuit agreed

with the parties that the § 213(a)(3) exemption did not apply to

17

“central employees who perform functions which serve several, or
all, of the company’s establishments.”

Id.

The types of

employees listed in Brennan–-central accounting office employees,
manager’s office employees, reservations office employees, and
advertising and promotion employees--are not akin to McMillan, as
those employees performed work for the organization as a whole.
McMillan maintained separate and distinct campgrounds.
Finally, even though Aloha Council, rather than “Camp
Pupukea” or any other campground, paid McMillan, that does not
mean that McMillan was a central office employee.

The federal

regulations distinguish between an establishment and an
enterprise or business, 29 C.F.R. §§ 779.23, 779.303, and it is
not uncommon for a central office, which is typically in charge
of fiscal matters, to issue paychecks to all of an organization’s
employees, even if they do not actually work at the central
office.

Cf. Marshall, 562 F.2d at 1329, 1333 (holding that two

horse-racing companies operating at Rockingham Park were separate
establishments even though that they both used time sheets
labeled only “Rockingham Park”).
The court concludes that, under § 213(a)(3), McMillan
is not entitled to overtime pay for the time he spent doing work
for Aloha Council’s campgrounds.

18

B.

Rule 56(d) Request.

McMillan’s only challenge to Aloha Council’s
designation of its campgrounds as “establishments” is that he
needs further discovery regarding how long each of the camps
operates each year and how Aloha Council reports the campgrounds’
income.

McMillan appears to be invoking Rule 56(d) of the

Federal Rules of Civil Procedure.
Under Rule 56(d),3 the court may deny a summary
judgment motion “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.”

“Failure to comply with

the requirements of Rule 56([d]) is a proper ground for denying
discovery and proceeding to summary judgment.”

Brae Transp.,

Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986);
see also Tatum v. City and Cnty. of San Francisco, 441 F.3d 1090,
1100 (9th Cir. 2006) (finding insufficient to support a Rule
56([d]) continuance an attorney's declaration that failed to
explain how a continuance would allow the party to produce
evidence precluding summary judgment).
“To prevail on a Rule 56([d]) motion, the movant must
also show diligence in previously pursuing discovery.”

See

Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 732 F. Supp.

3

The provisions now found in subsection (d) of Rule 56
were set forth in subsection (f) prior to December 1, 2010.
19

2d 1107, 1124 (D. Haw. 2010).

Rule 56(d) requires a court to

permit additional discovery only when “the non-moving party has
not had the opportunity to discover information that is essential
to its opposition.”

Roberts v. McAfee, Inc., 660 F.3d 1156, 1169

(9th Cir. 2011) (quoting Metabolife Int'l, Inc. v. Wornick, 264
F.3d 832, 846 (9th Cir. 2001)).

The party seeking additional

discovery “must identify by affidavit the specific facts that
further discovery would reveal, and explain why those facts would
preclude summary judgment.”

Tatum, 414 F.3d at 1100 (citations

omitted).
McMillan fails to show that he has not had the
opportunity to discover the information he seeks.

The filings

indicate that both parties have already engaged in discovery.
See, e.g., Decl. of William Lee ¶ 6, ECF No. 38-11 (referring to
Defendant’s Response to Plaintiff’s Request for Production dated
November 1, 2011).

McMillan was aware that Aloha Council was

raising the exemption stated in § 213(a)(3), as it was asserted
as a defense in its answer.

While the answer stated only that

McMillan was employed by Camp Pupukea, not Aloha Council’s other
campgrounds, the nature of the information relevant to McMillan’s
claim should have been clear to McMillan.
McMillan also fails to identify the specific facts that
further discovery would reveal and how those facts would preclude
summary judgment.

Nowhere in his papers does he even mention

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Rule 56(d).

In fact, McMillan filed a counter motion for summary

judgment, suggesting that he thought there were no triable issues
of fact precluding judgment in his favor!

McMillan provides no

justification for his failure to come forward with facts showing
that Aloha Council’s campgrounds are not exempt establishments.
His request for additional time to conduct discovery is denied.
C.

McMillan’s Work Not Directly Related to the
Campgrounds.

Aloha Council first argues that any work McMillan
performed that did not directly benefit the campgrounds is
permitted under 29 C.F.R. § 779.311 because it was insignificant
and incidental.

Section 779.311 allows an employee employed by

an exempt establishment to perform an insignificant amount of
incidental work for a nonexempt establishment.
Although McMillan’s remaining work, which amounts to
only 7 percent of his employment, may well be insignificant and
incidental, it is unclear whether section 779.311 applies to
§ 213(a)(3).

Unlike the other sections within Part 779 relied on

by this court, section 779.311 expressly applies to exemptions
for retail and service establishments that were found in
§§ 213(a)(2) and (4), which have been repealed:
An employee who is employed by an
establishment which qualifies as an exempt
establishment under section 13(a)(2) or (4)
is exempt from the minimum wage and overtime
requirements of the Act even though his
employer also operates one or more
establishments which are not exempt. On the
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other hand, it may be stated as a general
rule that if such an employer employs an
employee in the work of both exempt and
nonexempt establishments during the same
workweek, the employee is not “employed by”
an exempt establishment during such workweek.
It is recognized, however, that employees
performing an insignificant amount of such
incidental work or performing work
sporadically for the benefit of another
establishment of their employer nevertheless,
are “employed by” their employer's retail
establishment.
The court need not resolve whether section 779.311 is applicable
to § 213(a)(3) because that 7 percent of McMillan’s work, to the
extent not otherwise exempted, fits within the exemption stated
in § 213(a)(1).
Under § 213(a)(1), an employee is exempt from overtime
pay when he or she is “employed in a bona fide executive,
administrative, or professional capacity.”

Aloha Council argues

that, to the extent McMillan could be said to have performed work
while not “employed by” the campgrounds, such work should be
deemed to have been done while he was employed by the Service
Center in an administrative capacity.

The federal regulations

define an “employee employed in a bona fide administrative
capacity” as one who is:
(1) Compensated on a salary or fee basis at a
rate of not less than $455 per week (or $380
per week, if employed in American Samoa by
employers other than the Federal Government),
exclusive of board, lodging or other
facilities;

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(2) Whose primary duty is the performance of
office or non-manual work directly related to
the management or general business operations
of the employer or the employer's customers;
and
(3) Whose primary duty includes the exercise
of discretion and independent judgment with
respect to matters of significance.
29 C.F.R. § 541.200.

McMillan concedes that the first

requirement is met because he made no less than $455 per week.
In the 7 percent of his work in issue, McMillan
negotiated deed restrictions and a sale of Aloha Council’s
properties.

Def.’s Facts ¶ 12; Pl.’s Facts in Opp. No. 12.

He

created job descriptions, operating practices, a master plan for
Aloha Council’s programs and properties, and agendas for Aloha
Council’s risk management and properties committees.

Id.

also performed maintenance work for the Service Center.

He

Def.’s

Facts ¶ 13; Pl.’s Facts in Opp. No. 13.
The court agrees with Aloha Council that the second and
third requirements stated in section 541.200 are met because
McMillan’s duties were primarily nonmanual and included the
exercise of discretion and independent judgment with respect to
matters of significance.

Negotiating deeds, preparing agendas,

participating on committees, and developing a master plan are
significant matters and require independent judgment and
discretion.

They generally “involve the comparison and the

evaluation of possible courses of conduct.”

23

29 C.F.R.

§ 541.202(a).

That McMillan was under the supervision of and

took direction from the Scout Executive does not mean that he
exercised no discretion or judgment.

As stated in 29 C.F.R.

§ 541.202(c), “employees can exercise discretion and independent
judgment even if their decisions or recommendations are reviewed
at a higher level . . . .

The decisions made as a result of the

exercise of discretion and independent judgment may consist of
recommendations for action rather than the actual taking of
action.”

See also Cheatam v. Allstate Ins. Co., 465 F.3d 578,

585 (5th Cir. 2006).
With respect to whether McMillan’s work for the central
office was primarily nonmanual, the court notes that, of the 281
days McMillan performed work not directly related to any of the
campgrounds, only 46 days involved maintenance.

Given the other

tasks he performed and the limited time he spent doing manual
work, the court concludes that McMillan’s primary duties at the
central office were nonmanual.

See 29 C.F.R. § 541.700

(explaining that “primary duty” means the most important duty the
employee performs and that an employee who spends more than 50
percent of his or her time on exempt work will generally fulfill
the “primary duty” requirement); Baldwin v. Trailer Inns, Inc.,
266 F.3d 1104 (9th Cir. 2001) (stating that the percentage of
time spent on nonexempt tasks is relevant, but not dispositive).

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The record establishes that any work by McMillan for the Service
Center falls within the exemption stated in § 213(a)(1).
The court also concludes that Aloha Council is
permitted to combine the exemptions stated in § 213(a)(1) and
§ 213(a)(3).

Section 779.343 of the Code of Federal Regulations

states:
[W]here an employee during a particular
workweek is exclusively engaged in performing
two or more activities to which different
exemptions are applicable, each of which
activities considered separately would be an
exempt activity under the applicable
exemption if it were the sole activity of the
employee for the whole workweek in question,
as a matter of enforcement policy the
employee will be considered exempt during
such workweek.
29 C.F.R. § 779.343.
McMillan contends that section 779.343 is inapplicable
in this context, because Part 779 expressly applies to the retail
of sales and goods.

See 29 C.F.R. § 779.5.

However, section

779.343 expressly applies to any exemption in “the Act.”

In

addition, other sections within Part 779 expressly apply to
§ 213(a)(3).

See 29 C.F.R. §§ 779.385, 779.302.

Finally, as

stated previously in footnote one, other courts have persuasively
relied on sections within Part 779 when applying exemptions
stated in § 213(a) that do not pertain to retail.
In sum, McMillan is not entitled to any overtime wages.
When doing work directly related to Aloha Council’s campgrounds,

25

McMillan was exempt from overtime wages under § 213(a)(3).

When

doing other work, McMillan was employed in an administrative
capacity and exempt from overtime wages under § 213(a)(1).
D.

Hawaii Revised Statues § 387-3.

The court does not read Aloha Council’s present motion
as seeking summary judgment on McMillan’s claim under Hawaii
Revised Statutes § 381-3, as that statute was not addressed in
any of the papers relating to this motion.
McMillan’s Complaint asserts that this court has
supplemental jurisdiction over his Hawaii law claim.4
¶ 4, July 6, 2011, ECF No. 1.

Compl.

Supplemental jurisdiction, unlike

federal question or diversity jurisdiction, is not mandatory.

A

court may decline to exercise supplemental jurisdiction over a
state law claim if:

(1) the claim raises a novel or complex

issue of state law; (2) the state law claim substantially
predominates over the claim or claims over which the district
court has original jurisdiction; (3) the district court has

4

McMillan’s Complaint does not assert diversity
jurisdiction and fails to allege facts sufficient to support
diversity. Aloha Council appears to be a citizen of Hawaii, but
McMillan’s citizenship for diversity purposes is not evident.
McMillan alleges that he is a “resident” of Ohio, but that he was
formerly a “resident” of Hawaii. Compl. ¶¶ 4-5. It is not clear
where McMillan is domiciled. See, e.g., Kanter v. Warner-Lambert
Co., 265 F.3d 853, 857 (9th Cir. 2001) (“The natural person’s
state citizenship is . . . determined by her state of domicile,
not her state of residence. A person’s domicile is her permanent
home, where she resides with the intention to remain or to which
she intends to return.” (citations omitted)).
26

dismissed all claims over which it has original jurisdiction; or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.

See 28 U.S.C. § 1367.

Supplemental jurisdiction is thus a doctrine of
discretion, not of a plaintiff’s right.

City of Chicago v. Int’l

College of Surgeons, 522 U.S. 156, 172 (1997); United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).

When, as

here, “the federal claims are dismissed before trial, even though
not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.”

Gibbs, 383 U.S. at 726.

Such a

dismissal is not “a mandatory rule to be applied inflexibly in
all cases,” but “in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine--judicial
economy, convenience, fairness, and comity--will point toward
declining to exercise jurisdiction over the remaining state-law
claims.”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

(1988).
This court is granting summary judgment on the only
claim over which it has original jurisdiction and identifies no
factors making this case anything but the usual case in which
supplemental jurisdiction is better declined.

However, because

the parties have not discussed whether there is any reason (e.g.,
a statute of limitations issue) this court should exercise

27

supplemental jurisdiction, this court leaves the state claim for
another day.
V.

CONCLUSION.
The court GRANTS Aloha Council’s summary judgment

motion, and DENIES McMillan’s summary judgment motion.
McMillan’s Hawaii law claim remains for future adjudication.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 15, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

McMillan v. Boy Scouts of America-Aloha Council; Civil No. 11-00430 SOM/BMK; ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF’S
COUNTERMOTION FOR SUMMARY JUDGMENT

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